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Statewatch "Secret Europe": Briefing on the "Solana Decision"

28 March 2012

Statewatch Briefing on the case against the Council of the European Union on access to documents

Opinion by Steve Peers, Reader in Law, Essex University, on Decision 2000/527 amending Decisions 93/731 and 2000/23 on access to documents

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There are seven grounds of objection:

a) Breach of the prerogatives of the Commission, the European Parliament and national parliaments

It is settled law that Community acts are only valid if they respect the prerogatives of all the institutions which the EC Treaty requires to be involved in the adoption of the relevant act. The prior case has concerned the prerogatives of the Community institutions, but there is no reason not to extend that case law to the prerogatives of Member States' parliaments, pursuant to the Protocol on national parliaments attached to the EC Treaty by the Amsterdam Treaty.

It is true that the Court of Justice held in 1996 (Case C-58/94 Netherlands v Council [1996] ECR I-2169) that the Council was entitled, in the absence of any rules on the subject in the EC Treaty, to adopt internal rules concerning the issue of access to documents. However, the legal situation has now changed, because Article 255 of the EC Treaty requires the Community to adopt general rules concerning the access to documents of the Council, Commission and Parliament within two years. The Treaty makes clear that the unilateral powers of the institutions regarding access to documents are now limited to implementing those general rules. Although new rules have not yet been adopted, the Commission has proposed legislation on this matter. In similar circumstances, the Court has made clear that Member States have limited competence to act pending the adoption of a common Community policy which the Community institutions are required to adopt by a particular date (1976 judgment in Kramer). This reasoning should apply a fortiori to the Community institutions, where the Commission has already made a proposal to implement the Treaty obligations which is under active consideration in the Council and the European Parliament.

It is obvious that Decision 2000/527 is not a transitional measure designed to apply until the adoption of definitive Community rules, or a measure simply applying general principles of access to documents to the Council in particular. Rather the Council clearly intends to insist that the contained Decision 2000/527 should be contained in the future general Community measure on access to documents. This is evident from the preamble to the Decision, which justifies its adoption by reference to the development of a Union defence policy, an initiative still to be completed.

Therefore by adopting rules by means of an internal decision-making procedure which it intends to insist are included in a general Community measure, the Council has in effect breached the Commission's sole right of initiative in proposing such a measure pursuant to Article 255 EC, the Parliament's rights under that procedure pursuant to the co-decision procedure and national parliaments' rights pursuant to the Protocol on national parliaments to insist upon a waiting period for national parliamentary scrutiny before the final measure is adopted (see SN 3328/1/00, Note for the Committee of Permanent Representatives regarding the Security Plan for the Council, from Cabinet of the Secretary-General, 30 June 2000). In the alternative, it is submitted that it is not necessary to show that the Council definitely intends to insist upon the inclusion of Decision 2000/527 in the general Community measure; it is sufficient to show that the adoption of Decision 2000/527 might have an effect upon the legislative procedure presently underway.

b) Application of an incorrect Council voting procedure

Pursuant to Article 205(1) EC, Decision 2000/527 was adopted by a simple majority, rather than by a qualified majority as provided for in Article 255 EC. Although there was a qualified majority in favour of the adoption of Decision 2000/527, the case law of the Court makes clear that this is irrelevant; a Community measure is invalid in any case in which the wrong voting procedure was followed before its adoption (Case 45/86 Commission v Council).

c) Breach of the principles of democracy and the rule of law

The method of adoption of Decision 2000/527 was so objectionable that the Council has in effect not only violated the prerogatives of the Commission, the European Parliament and national parliaments, but the principles of democracy and the rule of law set out in Article 6(1) EU. The democratic principle is reflected in Article 207(3) EC, while the principle of the rule of law is reflected in Article 220 EC. Both principles have been long upheld by the Court of Justice (see respectively Case 138/79 Roquette Freres [1980] ECR 3333 and Case 294/83 Les Verts [1986] ECR 1339).

In this case, it is hard to imagine how adoption of the Decision could have been less democratic. There was no democratic discussion of the proposed Decision whatsoever before its adoption, given the short time which the Secretary-General left to the Council to discuss it and the time of year in which it was adopted. There is no plausible justification on grounds of 'urgency' for this speed, even if one considers the Decision justified by development of an EU defence policy, since the preamble to the Decision points out that there was 'political impetus' for development of that policy back in December 1999. In fact, the European Council took the decision to develop such a policy as far back as June 1999. The policy is not due to be fully agreed in any event until December 2000.

d) Breach of the principles of openness and transparency

Article 1 of the EU Treaty requires the Union, including the Communities and their institutions, to act 'as openly as possible'. This obligation has clearly been violated both by the method of adoption of Decision 2000/527 and (by means of the proportionality principle) the substance of that Decision. In particular, the Decision was adopted by an entirely closed procedure, with no open discussion of the proposal at any time and no publication of the proposal. It was definitively adopted by written procedure without ever being discussed by ministers, even in a Council session closed to the public, and there is evidence that the draft of the Decision was placed before representatives of Member States with no advance warning or discussion whatsoever. It is hard to imagine how adoption of the Decision could have been less open.

In any event, it is submitted that Article 1 of the EU Treaty, coupled with Article 255 EC, creates a standstill obligation for the Community institutions as regards access to documents. In order to ensure that they act 'as openly as possible', the institutions are therefore precluded from any act which makes access to documents more difficult than before the entry into force of the Treaty of Amsterdam.

e) Breach of the necessity and proportionality principles

The Court of First Instance ruled in Hautala (Case T-14/98), followed in Kuijer (Case T-188/98), that access to Community documents was governed by the proportionality principle. This must logically be true not merely of decisions to refuse individual documents but also of the overall system governing access to documents. Decision 2000/527 has severely breached that principle.

Applying the established case law on the principle of proportionality and the related principle of necessity, any restriction upon access to documents must serve a legitimate aim, must be strictly limited to what is necessary to achieve that aim and must impair the right of access to documents as little as possible. The person, institution or Member State claiming the benefit of a restriction has the burden of proof to satisfy these tests. Protecting the public interest as regards security and defence of the Union and its Member States is certainly a legitimate aim, but the necessity and proportionality principles still apply to such interests (see the judgments in Cullet; Johnston; Aime Richardt; Werner and Leifer; Centro-com; Svenska Journalisten; C-414/97 Commission v. Spain; Sirdar; Kreil; and Albore). However, that aim was already protected sufficiently by the rules in Decisions 93/731 and 2000/23. In particular, the Council was obliged to refuse to release documents which might undermine the public interest, a non-exhaustive concept (see Case C-610/97 R Carlsen, [1998] ECR I-485) which includes public security and international relations. The concept of 'public security' must also surely include any documents which concern threats to the defence and security of the Union and its Member States, even if such documents do not fall within the grounds for refusal on grounds of international relations or public security.

The Council has not shown why the existing situation was insufficient to protect these public interests. Decision 2000/527 has gone beyond the measures necessary to protect these interests, by providing automatically that all documents with a certain classification fall entirely outside the scope of the Council rules on access to documents. Previously the Council rules applied to all documents and so this is a severe restriction compared to the prior situation. It means that the Council can claim automatic exemption for such documents, rather than having to show that they fall within the permitted grounds for exclusion under the Decision. This also has the effect that portions of those documents which do not threaten the defence interests of the Union also fall outside the scope of the Decision, despite the Court of First Instance rulings in Hautala and Kuijer that such portions of documents must be released. The principle of proportionality has accordingly clearly been breached. As a result, documents relating to policy matters, not just operational secrets, could be refused automatically. This is hugely unnecessary and disproportionate.

Similarly, the new Article 2(3) which Decision 2000/527 has added to Decision 93/731 breaches the principles of necessity and proportionality. This sets out restrictive rules concerning documents which could enable 'conclusions to be drawn' concerning classified documents. This means that many additional documents are now subject to a special regime of release, itself procedurally illegal (see below). There is no necessity to refuse to release such documents, or to subject them to a special regime, unless the defence of the Union or the Member States (or another interest listed in Decision 93/731) could actually be undermined by release of that information; and in any event, such interests could be protected by 'blacking out' any passages which would undermine those interests, in accordance with the judgments in Hautala and Kuijer. A separate restrictive procedure for releasing those documents is therefore disproportionate.

In addition, the principles of necessity and proportionality have been breached by the first amendment to Decision 2000/23 made by Decision 2000/527. This amendment removes from the Council's register of documents all the documents now deemed to fall outside the scope of the rules on access to documents. Decision 2000/23 had not yet been fully implemented as regards this obligation, and provided in any event that where the public interest would be threatened by disclosing even the title of a document on the register, the title would have to be left out. In excluding such documents from listing in the register even under such conditions, by means of Decision 2000/527, the Council apparently believes that even disclosing a document number would threaten the public security of the Member States and the Union. The Council has not shown why leaving out the title of a document is insufficient to protect the public interest in such matters.

Finally, Decision 2000/527 has committed a particularly grave breach of the proportionality and necessity principles by linking the access to documents rules with the decision on classification of documents (OJ 2000 C 239/1), in particular Article 3(1) of that decision. This Article means that all documents related to a highly classified document must also be highly classified. As a result, still more documents will be removed from the scope of the Decision on access to documents, including many documents which are far less likely to pose a threat to the security of the Union and its Member States or threaten any of the other interests listed in Decision 93/731. This is all the more true since the relations of the European Union with third states almost always include aid, trade and other non-military measures alongside any military or crisis-management activity. Indeed, Article 3 EU requires such coordination of external relations policies. Exclusion of such documents entirely from the scope of Decision 93/731 is therefore a particularly gross breach of the proportionality principle.

f) Breach of the principle of effective remedies

The Court of Justice has long established that the principle of effective remedies underlies Community law. This must logically be no less true as regards remedies to enforce Community law rights against the Community authorities than it is as regards remedies to enforce Community law rights in the Member States.

Decision 2000/527 breaches this principle in two ways. First, it breaches it by removing all reference to excluded documents from the Council register of documents. This means that individuals have a dramatically reduced chance of finding out that a document exists, and of therefore challenging its classification. Second, it breaches the principle by for the first time formally linking the Community rules on access to documents to the Community classification rules. The classification rules have no procedure by which individuals can challenge the classification of a document and in effect expressly preclude individual objections to classification by providing that decisions to declassify can only be made by the person who classified a document (Article 4(1), classification decision). Without a challenge procedure of any kind, an individual cannot effectively hope to argue that a document has been wrongly classified and should therefore be included within the scope of the Decision on access to documents. In addition, the classification rules were simply adopted by the Secretary-General of the Council and required no reference to COREPER (Member States) or parliaments.

Moreover, the classification decision does not provide for any alternative system of independent review of classification of documents. The only review it provides for is an internal periodic questioning by the Classified Information Office (Article 9(1), classification decision). Nor is any system for expiry and renewal of classification set out in the classification decision.

It follows that the remedies regarding access to documents falling within the Council's classification system are manifestly inadequate. Indeed it is hard to imagine how they could be any less adequate.

g) Illegal delegation of powers

Decision 2000/527 provides in certain cases for authors of information to refuse to release documents containing that information (new Article 2(3) of Decision 93/731). This delegates the decision over whether to release a document to a third party, a manifest breach of the principles constraining delegation of the decision-making of the Community institutions established by the Court of Justice in Koster.

Conclusion

It can be seen that the Council has adopted new rules with a dramatic effect on its future administrative decisions in an important area of Community law. In doing so, it acted to breach the prerogatives of the Commission, the European Parliament and national parliaments; to ignore the voting rules constraining its decision; to violate the principles of democracy, the rule of law, openness, transparency, proportionality, necessity and effective remedies; and to delegate its decision-making powers outside permissible limits.

Statewatch Briefing on the "Solana Decision" of 26 July, 22 September 2000

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